One response to “Philosopher Peter Vallentyne on Right to Work Laws”

Are states within their rights when they pass laws forbidding certain union practices? In particular, they forbid “agreements between unions and employers that require workers to be members of unions or to pay agency fees for the benefits they receive from union representation.”

Peter Vallentyne argues that “freedom of association of workers … indeed entails that workers should be legally free to join a union (if there is one) and free not to do so. It doesn’t require, however, that the law prohibit workplaces that require union membership.” The argument is that the deal is between the company and particular employees; but if the company has accepted a closed shop, or an agency shop (which require employees to pay an agency fee for any benefits received from services provided by the union (such as collective bargaining), then the employee simply faces a different option than he faces if he simply takes a job with that company, no union strings attached, or perhaps as a completely “open shop.” And so, he argues, freedom of association in this regard require the the law neither forbids nor requires closed or agency shop arrangements.

In so arguing, however, the argument does not address the most prominent feature of the American labor scene regarding unions: namely, that they have a legally privileged right to participate in collective (as opposed to individual) bargaining, e.g. on wages, and especially the right to strike. That right is subject to two very different interpretations. On the one hand, it is the right to coordinate one’s actions with those of other workers, such that if one ceases to work in protest, then so do all the others – that is, all who participate in that agreement. On the other hand, however, when a union is recognized as the official “bargaining agent”, the individual employee does not have the option of refusing to participate in the strike, and the company does not have the right to fire and try to replace all of those employees who participate in the strike.*

If that sort of legislation is in place, the company is not a a free agent, and consequently its arrangements with particular workers are not obviously manifestations of freedom of association. Such legislation really does limit the freedom of the parties. Under the circumstances, a “right to work” law counteracts this imposition. It is then not so clear that that abstract right has the implication Vallentyne argues for, though he would certainly be right if no such basic interference from the law existed.

[* But in “The Right to Strike Under the United States Constitution: Theory, Practice, and Possible Implications for Canada: James Gray Pope
(jpope@kinoy.rutgers.edu ) argues that while the American government has frequently talked as though it recognizes this right, in practice it has supported it inconsistently and by and large not strongly.]